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Take control

A kit for making powers of

attorney and guardianship

April 2011



Take controlA kit for making powers of attorney and guardianship

Do you need this booklet in a different format?

Please ring us on 9269 0223 so we can talk with you about what you need.

Produced by Victoria Legal Aid and the Ofce of the Public Advocate.

Victoria Legal Aid

350 Queen Street

Melbourne 3000

Telephone 9269 0120 or country callers 1800 677 402

Ofce of the Public Advocate

5th oor, 436 Lonsdale St

Melbourne 3000

Tel: 1300 309 337 for the cost of a local call

Email: [email protected]

www.publicadvocate.vic.gov.au

First published July 1993

Eleventh edition February 2010 updated October 2010 and April 2011

Acknowledgments: Take control was originally an initiative of Northcote (now Darebin) Community Legal Centre. The project

was developed in partnership with the Ofce of the Public Advocate, the Legal Aid Commission of Victoria (now Victoria Legal

Aid) and Robert Phillips. Thanks to the many people who have contributed to its growth along the way, offering ideas, advice

and feedback - not only for this edition but also for the earlier editions.

© 2011 Victoria Legal Aid. Reproduction without express written permission is prohibited. Permission may be granted to

community organisations to reproduce, free of any charge, part or all of this publication. Written requests should be directed

to the Manager, Community Legal Education, Victoria Legal Aid.

Disclaimer: The material in this publication is intended as a general guide only. Readers should not act on the basis of

any material in this publication without getting legal advice about their own particular situations. Victoria Legal Aid expressly

disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of

this publication.

Changes to the law

The law changes all the time. To check for changes you can:

• call the Victoria Legal Aid Legal Information Service on 9269 0120 or 1800 677 402 (country callers)

• read the 'new law' section on the Victoria Legal Aid website at www.legalaid.vic.gov.au/695

• contact a community legal centre. Call the Federation of Community Legal Centres on 9652 1500 to nd your nearestcommunity legal centre.

ISBN 978 1 921180 87 3

Printed on recycled paper consisting of 50% post consumer waste and 50% certied bre from controlled wood sources.



C ont ent s

Contents

About this kit 3

What do these words mean? 5

Why do I need to make a power of attorney or guardianship? 7Who can make a power o attorney or guardianship? 7

Who decides when I can no longer make decisions or mysel? 8

What happens i I do not have a power o attorney or guardianship? 8

General power of attorney 11Can I appoint more than one decision-maker? 11

When do my attorney’s powers begin and end? 12

Can I limit my attorney’s powers? 12

Enduring power of attorney (nancial) 13Can I appoint more than one decision-maker? 13

When do my attorney’s powers begin? 14

Can I limit my attorney’s powers? 14

Enduring power of attorney (medical treatment) 15

Can I appoint more than one decision-maker? 15

Can I limit my agent’s powers? 16

Are there any medical decisions that my agent cannot make? 16

Enduring power of guardianship 17Can I appoint more than one decision-maker? 17

Can I limit my guardian’s powers? 17

Are there medical decisions that my guardian cannot make? 18

Choosing the right power for you 19When do I want someone to make decisions or me? 19

What decisions do I want someone to make or me? 20

Choosing the best person to appoint 21Who is the best decision-maker or me? 21

Have I checked that I have appointed the right person? 23

How to change or cancel your powers 25

How to protect your best interests 27What can the Guardianship List o VCAT do? 27

Can I take legal action? 28




2

How to make a power of attorney or guardianship 30Who can witness statutory declarations? 30

Do I need to make certifed copies? 32Who can make a certifed copy? 32

Should I see a lawyer? 33

Summary of powers of attorney and guardianship 34

Where to get help 35

Forms and instructions 37General power o attorney 39

Enduring power o attorney (fnancial) 41

Enduring power o attorney (medical treatment) 53

Enduring power o guardianship 55

Revocation o general power o attorney 61

Revocation o enduring power o attorney (fnancial) 63

Revocation o enduring power o attorney (medical treatment) 65

Revocation o enduring power o guardianship 67

Victoria Legal Aid

We are a state-wide organisation that helps people with their legal problems. We focus on helping and protecting the

rights of socially and economically disadvantaged Victorians.

We have lawyers in ofces in most major metropolitan and country regions. We also fund private lawyers to providelegal services to the public.

We can help you with your legal problems about criminal matters, family breakdown, family violence, child support,

immigration, social security, mental health, debt and trafc offences.

Call us to nd out how we can help you on 9269 0120 or 1800 677 402 (country callers).


The Ofce of the Public Advocate is an independent statutory ofce, working to promote the interests, rights

and dignity of Victorians with a disability. It provides advice about advocacy, guardianship, powers of attorney

(including enduring guardianship) and consent to medical and dental treatment.

The Ofce of the Public Advocate manages three voluntary programs, the Community Visitors Program, theIndependent Third Persons Program and the Community Guardianship Program. Community visitors monitor the

quality of disability services in order to safeguard the rights of vulnerable people. The Independent Third Persons

program provides support for people with a cognitive impairment who have contact with the police. The Community

Guardianship Program is a community-based program of guardianship for Victorians with a cognitive disability

who are unable to make decisions for themselves.

For more information visit www.publicadvocate.vic.gov.au or call our advice service on 1300 309 337

for the cost of a local call.



A b o ut t h i s k i t

About this kit

Many people have a Will to let people know their wishes after they die but what if you were

faced with an accident or illness and were unable to make decisions for yourself? Have

you given people the right legal authority to make decisions for you? As with a Will you can

make legal documents that allow decisions to be made that take into account your wishes.

The difference is that these documents allow you to control who will make nancial,

medical and/or lifestyle decisions while you are still alive.

You can choose a person to act on your behalf to make these decisions. You can make:

• a general power of attorney by appointing someone to make nancial or legal

decisions for you, usually for a specic period of time, such as when you are away

on holidays

• an enduring power of attorney (nancial) by appointing someone to make nancial

and legal decisions on your behalf, such as signing a legal document, selling property

or doing your banking, if you are unable to make these decisions some time in the future

• an enduring power of attorney (medical treatment) by appointing someone to make

medical decisions on your behalf, such as agreeing to or refusing surgery, if you areunable to make these decisions some time in the future

• an enduring power of guardianship by appointing someone to make day-to-day

lifestyle decisions on your behalf, such as where you live and health care issues, if you

are unable to make these decisions some time in the future.

An attorney does not have to be a lawyer. It can be anyone you trust to make decisions on

your behalf like a family member or friend.

We recommend that everyone over 18 years of age consider making these arrangements.

Read this kit carefully. It will help you work through the issues so you can put thearrangements in place that are best for you. Take your time. Think about what decisions

you want to be made for you and who is the best person to make them. When you are

ready there are forms at the back of this kit that you can ll in to make your

arrangements legal.




4

The information in Take control is not intended to be a replacement for legal advice.

Although you do not need a lawyer to make a power of attorney or guardianship, get legal

advice if you are unsure about your rights and responsibilities. There is a list of places you

can go for further information at the back of the kit.

See ‘Where to get help’.

At the end of most sections you will nd some commonly asked questions to help you.

There is also a section at the front of the kit that explains some of the legal words that

you may come across when you are making a power of attorney or guardianship.

See ‘What do these words mean?’ if there are any words you do not understand.



Wh at d ot h e s ew or d

s m e an ?

What do these words mean?

administrator: a person appointed by the Guardianship List to make nancial and legal

decisions on behalf of someone with a disability who is unable to make those decisions

for themselves

agent: another name for an attorney, used in an enduring power of attorney

(medical treatment)

alternate agent: a person who is appointed to stand in place of an agent when theagent is dead, incompetent or cannot be contacted or where the agent’s whereabouts

are unknown

alternative attorney: a person appointed to stand in the place of an attorney in the event

of the death or during the period of the absence or legal incapacity of the attorney for whom

the alternative attorney is appointed

alternative guardian: a person appointed to stand in the place of a guardian on the death

or during the period of absence or incapacity of the original guardian

appointor: a person giving decision-making power to another person through an enduring

power of guardianship

attorney: a person appointed to make nancial, legal or medical treatment decisions for

another person

capacity (legal capacity): having the ability to reason things out. You can understand, retain,

believe, evaluate (that is, process) and weigh up relevant information

certied copy: copy of a document on which an authorised person has certied: ‘This is a

true and complete copy of the original.’ See ‘Do I need to make certied copies?’

deed: a document that is signed, sealed and delivered

donor: the person giving (donating) decision-making power to another person

enduring: in this setting it means the power continues (endures) even if the person giving it

loses the capacity to make decisions




6

guardian: a person appointed either by a person or the Guardianship List to make personal

lifestyle decisions, such as decisions about where the person will live. A guardian only

makes decisions for someone who is unable to make those decisions themselves

Guardianship List: part of the VCAT that has the power to make orders about enduring

powers of attorney

jointly appointed: when two people are appointed as attorneys and both must agree on a

decision for that decision to be valid

jointly and severally appointed: when two or more people are appointed as attorneys and

either one or all can make a valid decision

revoke: to cancel a power of attorney or guardianship

statutory declaration: a document in which a person makes a statement and

acknowledges that it is made in the belief that, if the statement is false, the person is liableto penalties for perjury. The statement is witnessed by a person authorised under section

107A of the Evidence Act 1958

Victorian Civil and Administrative Tribunal (VCAT): deals with disputes, including

guardianship and administration matters

witness: a person who is present when someone signs a document who conrms that the

signature is genuine by adding their own signature



Wh y d oI n e e d t om ak e

a p ow er of at t or n e y or g u ar d

i an s h i p ?

Why do I need to make a power of attorney

or guardianship?

Sometimes things happen that you are not expecting, such as a head injury from a car

accident or temporarily becoming unconscious as a result of an illness. Making a power of

attorney or guardianship is the only way you can take control over who will make decisions

for you if you are not able to do so.

Who can make a power of attorney or guardianship?

To appoint someone as your attorney or guardian you must:

• be 18 years of age or over

• have sufcient capacity to make the appointment.

Capacity, or legal capacity, means you have the ability to reason things out.

You can understand, retain, believe, evaluate (that is, process) and weigh up

relevant information.

This means that at the time of making the appointment of power of attorney or

guardianship you must be able to understand things like:

• what sorts of powers the attorney or guardian will have

• what sorts of decisions they will have the authority to make

• when and how they will have the authority to exercise that power

• the effects that their power could have on you and the things that are important to you

• how to cancel or change the arrangement in the future.

Then you must be able to weigh up the risks and benets and make a decision based on

what matters most to you, without pressure from anyone else. When you make a decision

in this way, you have made an informed decision or given informed consent.

You might make a very different decision from other people who are in similar

situations to you and that is ne. As far as the law is concerned the important thing is

that you have understood the general nature of your decision and you have made your

decision freely.

You are not required to take a test to determine your capacity. The law assumes that you

have capacity once you turn 18 years old. However, for all enduring powers of attorney,

the witnesses are required to check your capacity by asking questions to make sure you

understand the document you are signing and the powers you are giving your attorney.

For any power of attorney or guardianship appointment to be valid, the person who signsthe form must also have capacity at the time they sign it. If a person does not have the

capacity to make an informed decision, then any form they sign will not be legally valid.




8

A legal body such as the Supreme Court or the Guardianship List of the Victorian Civil and

Administrative Tribunal (VCAT) can nd that a person did not have capacity to sign a power

of attorney or guardianship form. You may need a doctor or other expert to give their

opinion about your capacity to make decisions.

The Guardianship List is part of the Victorian Civil and Administrative Tribunal (VCAT)

and has the power to make orders about enduring powers of attorney.

Who decides when I can no longer make decisions for myself?

It is most likely to be your attorney or guardian who will make a decision about when

you lose capacity. They may be assisted by your doctor or health care service. There

may be a period of time where you have capacity, but are very frail, and so you rely more

on these people to help you. This may assist you to clarify whether you can trust them.

Your capacity may be good one day and poor the next. This will make it difcult for

professionals and your attorney or guardian to determine whether you have capacity.

Just because you have lost capacity does not mean that you should not be involved in

decision-making. Your attorney or guardian should make decisions that are in your best

interests in consultation with you.

What happens if I do not have a power of attorney or guardianship?

Not everybody bothers to appoint attorneys or guardians. There is certainly nothing to say

that you have to but there are consequences if you do not. For example, it could lead to

conict over who should take charge of the decision-making process if you become unable

to do this yourself.

The way in which conict can be resolved will depend on the type of decisions that need to

be made.

Financial and lifestyle decisions

If you do not appoint an enduring power of attorney (nancial) or guardian, and you lose

capacity to make your own decisions, then only the Guardianship List of VCAT can appoint

someone with the legal authority to make decisions on your behalf.

If the Guardianship List decides that you need someone to make decisions about your

nances or legal affairs, they will appoint an administrator .

An administrator is a person appointed by the Guardianship List of VCAT to make

nancial and legal decisions if you are unable to make these decisions yourself.

If they decide that you need someone to make decisions for you about other aspects of

your life they will appoint a guardian.

A guardian is a person appointed to make personal lifestyle decisions on your

behalf. A guardian can only make decisions for you if you are unable to make

decisions yourself.



The Guardianship List has an obligation to take your views into account when appointing

an administrator or guardian but ultimately it is their decision, not yours.

Guardianship and administration hearings, while not as formal as a court hearing, can still

be very stressful for everyone involved. There can be conict between family and friends

about who is best placed to make decisions for you. Appointing someone as an attorney

or guardian ahead of time avoids this conict.

Medical treatment decisions

If you do not appoint an attorney (medical treatment) or guardian with power to make

medical treatment decisions, and you are unable to make your own decisions about

medical treatment, whoever is rst on the following list can consent to medical treatment

for you:• someone already appointed by the Guardianship List of VCAT to make medical

decisions for you

• someone you have appointed in some other way in writing to make medical treatment

decisions for you

• your spouse or partner

• your primary carer (cannot be a paid professional carer)

• your nearest relative.

These people cannot consent to the following special medical procedures without rst

getting approval from the Guardianship List:• medical procedures that are likely to lead to infertility

• termination of pregnancy

• removing tissue for transplants.

They also cannot refuse medical treatment for you if you are unconscious and dying, even

if you would not want the medical treatment or it would cause you unreasonable distress.

For example, if you were dying with cancer you may not want to be resuscitated as this

can be painful and distressing. You need someone to sign a document declaring that you

are not to be resuscitated. Once you have lost your capacity, only an agent appointed

under the Medical Treatment Act 1988 or a guardian appointed by the Guardianship Listcan sign such a document for you.

Appointing an enduring attorney under the Medical Treatment Act is the only way in

which you can have control over who will make these end-of-life decisions for you if you

are unable to make these decisions for yourself.

See ‘What is an enduring power of attorney (medical treatment)?’

Wh y d oI n e e d t om ak e

a p ow er of at t or n e y or g u ar d

i an s h i p ?




10

More questions

Is it possible to ask someone to sign a power of attorney for me if I cannot

physically sign the form myself?

Yes – as long as you have capacity. The enduring power of attorney (nancial) form has

a space for a person, who is not a witness or the attorney, to sign on your behalf and in

your presence. We recommend similar wording be used on the other forms. For example:

I, ... [person signing at your direction prints his/her full name] ..., state that:

(a) I am the person signing at the direction and in the presence of the donor as the donor

is unable to sign

(b) I am at least 18 years old

(c) I am not a witness for this document or an ... [attorney/alternate attorney/guardian/

alternate guardian] ... for the donor.

[Person signing under your direction and in your presence signs here]

How can someone make a power of attorney if they cannot read English?

If a person cannot read English they should only sign a form once it has been translated

and they are satised that they understand what the document says. The interpreter must

be qualied. We suggest the following words are added to the form below the person’s

signature to make it clear that the document was translated:

Signed as a deed by ... [name of person making the power] ..., having rst been read

out and translated into ... [language] ... by ... [name of interpreter] ..., the donor being ...

[nationality] ... and ... [language] ... being the customary language understood by

the donor.

It is sensible for the witnesses to be able to speak English and the language of the donor.

We suggest that these witnesses complete and sign the statement below:

Certicate of witnesses

This enduring power of attorney/guardianship was read out and translated to the donor

into ... [language] ... by ... [name of interpreter] ... and the donor appeared to understand

the same and approve its contents.

[Witness signs under this statement]

The interpreter should also provide a signed statement to say they have translated the

power of attorney or guardianship form. This statement should be attached to the form.

A donor is a person giving decision-making power to another person.



G en er al p ow er of

at t or n e y

General power of attorney

A general power of attorney is a legal document that appoints one or more people to make

nancial and legal decisions for you. It is often used for a specic purpose and for a xed

period of time.

You can give your attorney authority to do one thing or a whole range of things. This

could include:

• using your bank account

• selling your property

• paying your everyday expenses

• paying your taxes and mortgage payments

• making investment decisions

• running your business.

Can I appoint more than one decision-maker?

You can appoint more than one decision-maker. You can choose whether they make

decisions:

• jointly, which means they must all agree to any decisions and every document must

be signed by all of them

• jointly and severally, which means that any of them can make a decision and sign

documents together or without the others.

Appointing more than one decision-maker can help you get a balanced outcome. For

example, you might choose to appoint one person who knows what you would want, such

as a friend or relative, and another person who can make good nancial decisions, such as

an accountant. If they act jointly you may feel condent that any decisions made would be

in your best interests and nancially sound. Be aware though, if you appoint them jointly

and they cannot come to an agreement about what to do then a decision cannot be made.

Your attorneys would have to apply to a court to resolve the disagreement. Appointing your

attorneys jointly and severally may avoid such problems and delays.




12

When do my attorney’s powers begin and end?

You have control over when your attorney’s powers begin. It will be as soon as you have

signed the form or you can change the form and specify a starting and/or ending date.

For example, if you need someone to run your business while you are on holidays you can

make a power for the period that you are away.

If you appoint a general power of attorney and then lose legal capacity at a later stage, the

document will no longer be valid. The person you have appointed will not be able to make

decisions on your behalf. Your attorney’s powers also stop if they become bankrupt, they

resign or you die. You can also change or cancel a general power of attorney at any stage.

See ‘How to change or cancel an appointment’.

Can I limit my attorney’s powers?

You can limit or place conditions on how you want your attorney(s) to carry out their

responsibilities. For example, you could limit their authority so that they only deal with

shares, or they can pay bills, but not deal with your real estate.

If you do not specify any limits your attorney will be able to make any nancial or

legal decisions on your behalf until the appointment is changed or cancelled, or you

lose capacity.



E n d ur i n g p ow er of at t or n e y( f i n an ci al )

Enduring power of attorney (nancial)

An enduring power of attorney (nancial) is a legal document that appoints one or more

people to make nancial and legal decisions for you. Unlike a general power of attorney, it

continues to be legal even if you are unable to make these decisions yourself. This means

that someone you choose can take control of your nancial and legal affairs if you ever

lose capacity.

When making decisions for you, your attorney must:

• act in your best interests

• wherever possible make the same decision that you would make

• keep accurate records of dealings and transactions

• avoid situations where there is a conict of interest

• keep your property and money separate from their own.

You do not need to pay your attorney for the power to be effective. Normally, payment is

made if your attorney is a trust company or professional person, such as an accountant.

If you appoint a friend or family member, and you believe that they should be paid for their

service, get a lawyer to prepare the documentation.


There are two options under the Instruments Act 1958 to appoint more than one decision-

maker. You can choose whether they make decisions:

• jointly, which means they must all agree to any decisions and every document must be

signed by all attorneys

• jointly and severally, which means that any of them can make a decision and sign

documents together or without the others.

Appointing more than one decision-maker can help you get a balanced outcome. For

example, if you choose someone who knows what you would want, but they do not have

the nancial knowledge, you could have a second attorney who is a nancial expert, such

as an accountant.

If you appoint two people jointly it can slow the decision-making process down. Also, if

they cannot come to an agreement about what to do, your attorneys would have to apply

to the Guardianship List of VCAT to resolve the disagreement. Appointing your attorneys

jointly and severally may avoid such problems and delays.

You can also appoint an alternative decision-maker so that if the rst person is unable tocarry out the role there is someone else who can step in. An alternative attorney can only

act if your attorney loses capacity, dies or they are absent for a period of time, such

as when they are travelling overseas.




14

When do my attorney’s powers begin?

You can nominate when your attorney’s power starts. On the form you are asked if you

want the attorney to begin:

• immediately

• on a specied date

• on a specied occasion.

If you do not select one of these options the power begins immediately.

If you choose to start it immediately your attorney can act even if you still have capacity.

You can also continue to make decisions yourself while you have capacity but they must

act in accordance with your directions.

If the power comes into effect once you have lost capacity, then the attorney may have toprove that you have lost capacity. This usually requires some medical evidence. It is wise

to give your attorney permission to speak to your doctor about your health so they can get

this evidence. A draft form of consent can be found on the Ofce of the Public Advocate

website at www.publicadvocate.vic.gov.au

Can I limit my attorney’s powers?

You can limit how you want your attorney to carry out their responsibilities and place

conditions on the decisions they make on your behalf. You can include instructions about

what you would like your attorney to do and they must act on these. You can also set out

your wishes but these are not binding on the attorney. If you have large capital assets,such as property or shares, you could leave clear instructions about how your attorney

should manage, distribute or dispose of these assets.

It is better not to place too many restrictions on your attorney’s power, as this may make it

difcult for them to make decisions on your behalf. If you choose to impose conditions or

restrictions it is recommended you get legal advice.


If you do not specify any limits your attorney will be able to make any nancial or

legal decisions on your behalf from the time the power of attorney begins to when it ischanged or cancelled.



E n d ur i n g

p ow er of at t or n e y( m e d i c al t r

e at m ent )

Enduring power of attorney (medical treatment)

An enduring power of attorney (medical treatment) is a legal document that appoints

another person to make decisions about your medical treatment. The appointment begins

if and when you are unable to make decisions about your medical treatment. You may have

lost capacity permanently, such as through dementia or an acquired brain injury, or it might

be temporarily, such as if you are unconscious as a result of an accident or illness.

In either event, while emergency treatment can be given without your agreement, other

medical treatment, such as surgery or medication, generally requires consent. If you are

unable to give that consent but have an enduring power of attorney (medical treatment),

your attorney can make a decision on your behalf about whether to agree to treatment

or not.

In some cases the power to refuse medical treatment may be signicant. You may wish

to appoint someone to make these decisions for you if you do not want to:

• be put on life support

• have medical interventions that may prolong dying but not be of any therapeutic value.

When making decisions on your behalf your agent must:


• wherever possible make the same decision that you would have made

• avoid situations where there is a conict of interest.

The person that you appoint to be your decision-maker for an enduring power of

attorney (medical treatment) is called an agent.

It is very important that your agent understands your views about potential medical

treatment especially the type you would want them to refuse. Discuss this with them andwrite down your wishes.

You may also wish to discuss this with your family as your agent has the power to override

the medical decisions of family members. If your family believes the agent is not acting

in your best interests, they can make an application to the Guardianship List of VCAT to

revoke or suspend your enduring power of attorney (medical treatment).


You can only appoint one agent but you can appoint an alternative decision-maker so

that if your agent is unable to carry out the role there is someone else to step in. Analternate agent can only act if your attorney loses capacity, dies or they are absent for

a period of time.




16

Can I limit my agent’s powers?

The powers of the agent are set out in the Medical Treatment Act and cannot be changed.

They can only make decisions about medical treatment. They can only refuse medical

treatment on your behalf if the treatment would cause you unreasonable distress or they

reasonably believe that you would consider the treatment unwarranted.

Are there any medical decisions that my agent cannot make?

An agent does not have the authority to consent to medical procedures that are likely

to lead to:

• infertility


• removal of tissue for transplants.

Before any of these procedures can be carried out the agent must apply to the

Guardianship List of VCAT for a decision.



E n d ur i n g p ow er of g u ar d i an s h i p

Enduring power of guardianship

This is a legal document appointing someone to make personal or lifestyle decisions on

your behalf. The appointment begins when you are unable to make your own decisions.

It is up to you to specify what sorts of decisions you would want your guardian to make.

These will generally be decisions around practical issues that affect your daily life, such as

where you live or what sorts of activities you do. The form has examples of the types of

powers you can choose.

If you have not made an enduring power of attorney (medical treatment), your guardian

can also consent or withhold consent to medical treatment on your behalf. If your guardian

withholds consent to proposed medical or dental treatment, a practitioner may only

provide treatment after notifying your guardian and giving them a chance to apply to the

Guardianship List of VCAT about the treatment. If you wish to appoint a person who can

refuse medical treatment in all circumstances, it is best to make an enduring power of

attorney (medical treatment).

When making decisions on your behalf your guardian must:• take into account any wishes you have expressed


• wherever possible make the same decision that you would have made.

You cannot appoint a person who is providing you with professional care, treatment

or accommodation.


You can only appoint one guardian. However you can also appoint an alternative decision-

maker so that if your guardian is unable to carry out the role there is someone who can

step in. An alternative guardian can only act if your guardian loses capacity, dies or they

are absent for a period of time, such as they are travelling overseas.

Can I limit my guardian’s powers?

You can limit how your guardian uses their powers. You can also state any wishes you

want your guardian to take into account when making a decision. You should discuss

these with them before making the appointment. You can delete from the form any powers

that you do not want your guardian to have.

If you do not specify any limits to the powers of an enduring guardian then they will

have the same decision-making powers that a parent would have over a child.




18

Are there medical decisions that my guardian cannot make?

If you have appointed a person as your agent under an enduring power of attorney

(medical treatment), their decision about your medical treatment will have priority over the

decision of your guardian.

Like an agent, a guardian does not have the authority to consent to medical procedures

that are likely to lead to:

• infertility


• removal of tissue for transplants.

Your guardian must apply to the Guardianship List of VCAT for a decision about whether

these procedures can be carried out.

More questions

If I have not appointed a guardian, what can my family do?

If you have capacity, but are reluctant to appoint a guardian, your family and friends

should still know what you want in relation to health care, nancial decisions, palliative

care, resuscitation and accommodation choices. Your family should record what you want

and the date when you made these statements, so they can carry out your wishes if you

are unable to do so. Eventually you may wish to appoint a guardian, but remember you

can only make this decision if you have capacity.

What happens if I don’t have a guardian and I lose capacity?

If everyone agrees about the treatment or care you need or where you should live, then

it is likely that your family and health care professionals can make decisions about your

welfare without an enduring power of guardianship in place. If your family does not agree

with health professionals on what is best for you, they can apply to the Guardianship

List of VCAT to appoint a guardian. Contact the Ofce of the Public Advocate to get

information about an application.

The Guardianship List will appoint a guardian if this is appropriate. Any statements you

made while you had capacity about what you wanted will be very important to guide the

decision-maker. The Guardianship List may appoint the Public Advocate as your guardian

as a last resort, such as if you have no family or there is a need for an independent person

to make decisions.

When can my guardian start making decisions?

Your guardian can make decisions for you when you have lost capacity. The Ofce of the

Public Advocate has fact sheets on enduring power of guardianship available at


http://www.publicadvocate.vic.gov.au/

http://www.publicadvocate.vic.gov.au/



C h o o s i n gt h er i gh t p ow e

r f or y o u

Choosing the right power for you

The four different powers of attorney and guardianship have their own purpose and value.

You need to select the powers that are relevant to your situation.

The main difference between the general power of attorney and the three enduring powers

is that a general power stops when you lose capacity to make decisions. An enduring

power will continue through any period of incapacity.

Be careful that you do not make things more complicated than they need to be. Choose

the arrangements, and the people, that are right for YOU.

It is important that you spend time thinking about what you want to achieve by making the

appointment. Also think about the areas of your life where you need a decision-maker.

When do I want someone to make decisions for me?

Thinking about the following questions can help you work out when you might want

someone to be your decision-maker.

Do you want to deal with problems that are arising now or in the immediate future?For example, do you need someone to:

• manage your nancial affairs while you are away on holiday

• carry out nancial transactions for you because you cannot do so yourself, either

through a physical disability or geographical remoteness?

If YES, then you can appoint someone with a general power of attorney.

If you give someone a general power of attorney, that power will stop if you lose legal

capacity to make decisions. This could be awkward if your attorney is in the middle of

conducting business for you.

Do you want to prepare yourself for problems that might happen in the future?

For example, do you need someone to:

• manage your nances if you are unable to do so yourself, such as if you were

involved in a car accident and you acquire a brain injury that affects your ability to

make decisions

• make medical treatment decisions for you because you have episodes of mental

illness where you cannot make decisions for yourself

• make decisions about where you will live if you cannot do so yourself because you

have dementia?

If YES, then you can appoint someone with an enduring power of attorney or guardianship.




20

What decisions do I want someone to make for me?

Sometimes it is not going to be immediately obvious which arrangement, or

combination of arrangements, is best for you. For example, there are some similarities

between an enduring power of attorney (medical treatment) and guardianship. Make

sure you understand the various arrangements before you make your nal decision.

Do you want to give someone the authority to make nancial decisions, such

as managing your banking and income, paying your bills, signing contracts or

handling your assets?

If YES, and you have capacity, you need a general power of attorney. If you want

someone to make these decisions if you lose capacity you need to appoint someone

with an enduring power of attorney (nancial).

Do you want to give someone the authority to make medical treatment decisions,

such as consenting to surgery or maintaining life support systems?

If YES, then you need to appoint someone with an enduring power of attorney

(medical treatment).

Do you want to give someone the authority to make lifestyle decisions, such as

where you will live or how your health care should be maintained?

If YES, then you need to appoint someone with an enduring power of guardianship.

More questions

Can someone appointed with an enduring power of attorney (nancial) also make

decisions about my medical treatment?

No. You must appoint an enduring power of attorney (medical treatment) or an enduring

power of guardianship for someone to make decisions about your medical treatment.

Can my guardian also make decisions about my nances?

No. If you want someone to make decisions about your nancial or legal affairs then you

must appoint an enduring power of attorney (nancial).

Can my guardian make decisions about my medical treatment?

Yes but if you have also appointed someone with an enduring power of attorney (medical

treatment) their decisions will take precedence over your guardian’s decision about

medical treatment. Also a guardian cannot refuse medical treatment on your behalf. Only

somebody with an enduring power of attorney (medical treatment) can do this.

Can someone appointed with an enduring power of attorney (medical treatment)

make decisions about where I should live and what support services I may need in

my home?

No. Only a guardian can make decisions about living arrangements and support services.

Why do I have to make four powers instead of just one?

The laws about different powers of attorney were developed at different times, which is

why there are four forms instead of one. There is a proposal to have one form but this

will require new laws.



C h o o s i n gt h e b e s t p er s ont o a p p oi nt

Choosing the best person to appoint

Probably the most important decision of all is deciding who you are going to choose to

make decisions for you. This is particularly important when you are appointing someone

with an enduring power, as they will have the authority to make decisions for you after you

lose the capacity to change or cancel the appointment.

Many people choose their spouse or an adult child but you may prefer to appoint another

family member, a friend with expertise in the area, an accountant, a lawyer, State Trustees

or a trustee company. You should feel condent that the person or agency is competent

and willing to take on the responsibility on your behalf.

Remember, for someone to be your attorney or guardian they must:

• be 18 years of age or more

• have legal capacity.

See ‘Who can make a power of attorney or guardianship?’

Who is the best decision-maker for me?

When you appoint someone to make decisions on your behalf be sure the person is going

to act the way you want them to. This means you need to choose someone who knows

you well enough to be able to know what you would want.

Think carefully about deciding who you are going to appoint.

Appoint someone you can trust

Remember that any power of attorney or guardianship gives enormous power to the

person you appoint. They will be able to make legally binding decisions about important

areas of your life. With the exception of the general power of attorney, the person is

able to make decisions when you lose capacity to make decisions for yourself. Thatmeans they are able to make important decisions for you when you are vulnerable and

powerless. You need to be sure that the person is someone who you trust.

Appoint someone who can act according to your interests and not their own

Do not assume that the people who are closest to you will be the best decision-makers.

Sometimes the people who know you the best are also the least objective. For

example, it might be very difcult for a close friend, partner or family member to make

decisions about life-saving medical treatment. They would be trying to balance their

responsibilities to do what you would want with their own feelings about what they want.

This does not mean that it is unwise to appoint people who are close to you. Think about

if the person will be able to act genuinely in your best interests to do what you want.




22

Appoint someone who is likely to be able to take on the role when it is needed

Often the powers will not be used for some time, particularly with enduring powers of

attorney or guardianship. You need to appoint someone who is able to take on the role

in the future. This might not be someone who is appropriate now. For example, an older

parent or friend might not be appropriate because they may not be alive or able to take

on the role when required.

Appoint someone who is happy to take on the role

Make sure you talk with the person you want to be your attorney or guardian before

making the appointment. Do not assume they want to take on the role. The person

might know you well and care for your welfare and interests but they might nd the

role too daunting or feel they cannot be objective.

Appoint someone who will listen to what you want and respect your preferences

even after you have lost legal capacity

Anyone who is appointed to make decisions for you should take the time to listen to

what you want. This means they need to talk with you about the sorts of situations that

might arise, and what decisions you want them to make. For example, if you make an

enduring power of attorney (medical treatment) you should talk to your attorney about

what sort of medical treatment you would want (and not want) and when you want them

to refuse life-prolonging treatment. The person should also be prepared to check what

you want in the future, as your opinions and priorities might change.

If you lose capacity to make decisions it is important that decisions are made based

on what matters to you. You might not be able to explain what you want coherently but

you still may be able to communicate in some way. Be sure you appoint an attorney or

guardian who respects your wishes and will take the time to nd out what is important

to you, even after you have lost capacity.

Talk to the person about how you would want decisions made before you appoint them.

This not only gives them an idea of how you would want them to act but also gives you

a sense of how open they are to listening to you and to accepting the sorts of decisions

you would want made.

It is important that you choose someone who is also able to listen, respect what you

want and balance this with what is in your best interests.

Appoint someone who is able to take on the role

Make sure the person you appoint knows enough about the issues so they can make

appropriate and competent decisions. This does not mean the person you appoint

needs to be an expert but it does mean they need to know what they are doing and be

able to get advice from others when necessary.



C h o o s i n gt h e b e s t p er s ont o a p p oi nt

Have I checked that I have appointed the right person?

Circumstances can change. Someone who is the right person to appoint now might not be

the right person in a year or so. It is a good idea to check at least once a year to see if the

people you have appointed are still right for the job. You can change your appointment if

you change your mind.

See ‘How to change or cancel your powers’.

More questions

Do I have to pay my attorney or guardian?

If your attorney is a friend or relative you do not have to pay them. If your attorney is a

lawyer, accountant, trustee company or other professional entity, then you will have to

pay. Make sure you understand their fees.

Can the same person be a guardian, nancial attorney and medical attorney?

Yes, but you can also choose different people.

Does the person I choose have to be the same person I choose to be executor

of my Will?

No.

Is it best to have the same or different people?

It makes no difference in law. It is up to you to decide who would be the best person

to act in each role.

My three adult children always disagree about everything. I am considering

appointing one to each of the three roles. Is this a recipe for disaster?

Though the roles for the three enduring powers are separate, there are times they

overlap. For example, the person appointed under your enduring power of attorney

(medical treatment) can make decisions about medical matters, even if your guardian

disagrees. However, your guardian has authority for non-medical health matters, such

as physiotherapy or diet. Another example is if your guardian needs to make a decision

about your residential care, they may also need your attorney (nancial) to cover the

costs. Make sure that your children are aware of each appointment and that they may

need to co-operate.




24

What if I do not have any family?

If you do not have any family, or there is no-one you trust to make decisions, you can

appoint a professional person to make your decisions.

You can appoint a trustee company, a lawyer or an accountant to make your nancial

decisions. Always get consent before making these appointments. There will usually be

a cost involved to your estate.

In rare circumstances the Public Advocate will accept an appointment as a person’s

agent or guardian. However, talk to the Ofce of the Public Advocate before any such

appointment is made.

What happens if my attorney dies?

If you have only appointed one attorney then you will have to choose a new attorney and

ll in new forms. If you have appointed more then one attorney and they make decisions

jointly, then they cannot act alone and you will need to appoint a new attorney. If you have

attorneys who make decisions jointly and severally, the surviving attorney can still make

decisions. If you have appointed an alternative attorney they will take over the powers of

your attorney.



H ow t o ch an g e or c an c el y o u

r p ow er s

How to change or cancel your powers

There are different reasons why you might want to change or cancel a power of attorney

or guardianship. These may include:

• your relationship with the attorney has changed.

• you now know someone who would be more suitable for the role

• you or the attorney may have moved

• your nancial, health or lifestyle circumstances have changed so much that the personyou appointed is no longer suited to make decisions on your behalf, such as your

nancial situation has become more complex, and the person you appointed is no

longer appropriate for the role

• your wishes have changed and you want to change your attorney’s instructions.

Depending on what you want this could mean appointing a different person or the same

person again with different responsibilities.

If you choose to appoint a new guardian any previous appointment is automatically

revoked. If you choose to change your enduring power of attorney (nancial) or enduring

power of attorney (medical treatment), you have the option to revoke all previous enduring

powers when you complete a new form.

You should tell the previous guardian or attorney that the power has been revoked. It is

also a good idea to tell any organisations or people who have a copy of your forms, such

as nancial institutions, businesses, or health care workers.

You can also revoke a power of attorney or guardianship by:

• telling the attorney or guardian that their power is withdrawn

• destroying the document and any copies

• putting it in writing or lling in a revocation form.

See ‘Revocation forms’.

If you put it in writing keep the original document and give a copy to your attorney or

guardian. Ask them to return their copy of the power of attorney or guardianship form.

If you do not have legal capacity the Guardianship List of VCAT can revoke a power if it

believes that your attorney or guardian is acting improperly or against your best interests.

See ‘What can the Guardianship List of VCAT do?’

You may revoke a power of attorney or guardianship at any time, as long as you

have capacity.




26

Your power of attorney or guardianship is also revoked by:

• your death

• an attorney becoming bankrupt, losing capacity or dying

• an attorney’s resignation

• the terms of the power, for example, if it is for a set period of time it will be revoked

at the end of that period

• a decision of the Guardianship List

• in the case of a general power of attorney, if you lose capacity.

Remember your attorney’s or guardian’s actions are binding unless their power is revoked.

More questionsCan I change an enduring power of attorney after someone begins exercising their

powers?

Yes, but you can only change the powers by revoking them if you have capacity.

What if my attorney makes nancial or legal decisions that are not in my best

interests or against my wishes before I have a chance to revoke their power?

You will need to take legal action against your attorney to recover any losses. To do this,

you need to show that your attorney acted without proper care.

Can my attorney continue to act if I have revoked the power, but have not been able

to notify them of this?

Yes, so long as they are acting in good faith based on documents that they do not know

are revoked.

Can my attorney resign?

Yes. If your attorney decides that they can no longer full this role, they can resign by

giving you a signed notice. They can also get leave to resign from the Guardianship List

of VCAT or the Supreme Court if you do not have capacity.



How to protect your best interests

When you appoint an attorney or guardian you are giving a great deal of power to another

person. They will have the authority to make important decisions about your life without

being formally monitored.

Your attorney or guardian does not have to submit any reports about their decisions

or show how they have acted in your best interests, unless they are asked to by the

Guardianship List of VCAT. Even so, your attorney or guardian has a legal obligation to act

in your best interests. There are ways to make sure your attorney or guardian does this.

This is relatively straightforward with a general power of attorney or an enduring power of

attorney (nancial). While you still have legal capacity, you can check what they are doing.

This does not work if you have lost capacity. When you are making your powers, think

about having another person, such as a friend or professional, check on your situation.

It is best to tell all parties, including your attorney or guardian, that you have made this

arrangement, so everyone knows what you want. These sorts of arrangements will always

be informal.

There are also legal options to deal with an attorney or guardian if they are not acting

responsibly or in your best interests. You can ask the Guardianship List to revoke or

suspend the power. You can also take legal action if there is negligence or go to the police

if there is any dishonesty.

What can the Guardianship List of VCAT do?

Anyone who has a genuine interest in your welfare can ask the Guardianship List of VCAT

to consider the actions of the attorney or guardian. If the Guardianship List is satised that

the attorney or guardian is not acting in your best interests, it can revoke or suspend the

appointment. This can only happen when you do not have legal capacity to make your own

decisions. The Guardianship List can then appoint an administrator or guardian for you, or

they can decide that you do not need to have anyone to make decisions for you.

If the matter is urgent the Guardianship List has a 24-hour emergency service. Contact

the Ofce of the Public Advocate for advice and further information.

H ow t o pr ot e ct y o ur b e s t

i nt er e s t s




28

In addition in the case of an enduring power of attorney (nancial) the Guardianship

List can:

• declare the power to be invalid

• give directions or make recommendations to the attorney

• vary the effect of the power

• suspend the power

• give advisory opinions

• require the attorney to lodge accounts or have accounts examined or audited.

Victoria Legal Aid provides a free duty lawyer service at the VCAT, as well as clinic

appointments and advice about guardianship matters.


Can I take legal action?

If an attorney or guardian has acted irresponsibly and you have suffered some harm or

loss as a result, then you might be able to take legal action. This would involve suing the

attorney or guardian for negligence. You should get legal advice to do this.

If you have lost capacity the situation is more complicated but legal action is still possible.

You need to take the matter to the Guardianship List of VCAT to revoke the appointment

because the person has not acted in your best interests. The Guardianship List can

appoint an administrator who can take legal action on your behalf.

See ‘How to change or cancel an appointment’.

If you are not able to take the matter to the Guardianship List yourself (which is likely),

another person, such as a friend or family, could make an application on your behalf.

Contact the Guardianship List, the Ofce of the Public Advocate or Victoria Legal Aid

for more information.


More questions

How do I make sure my attorney or guardian will do what I want?

On the enduring power of attorney (nancial) form you can give instructions or set

conditions and limitations on your attorney’s powers. On the enduring power of

guardianship form you can list the things you want your guardian to take into account

when making decisions. There is no ability to do this for an enduring power of attorney

(medical treatment) under the Medical Treatment Act.

It is important for you to tell your attorney or guardian what you want. The more details

you discuss the easier it will be for them to work out what you would want

to happen.



H ow t o pr ot e ct y o ur b e s t

i nt er e s t s

Is there somewhere I can go if I believe that a power of attorney or a power of

guardianship is being abused?

Yes. You can contact the Guardianship List of VCAT. The Guardianship List can revoke

any enduring power of attorney or guardianship. If you would like further advice contact

Victoria Legal Aid or the Ofce of the Public Advocate.


What can be done if doctors or other professionals do not agree with my attorney

or guardian regarding care options?

If a doctor considers that your attorney or guardian is not acting in your best interests,

the doctor can serve them with a notice about treatment or take the matter to the

Guardianship List of VCAT. Your attorney or guardian should contact the Ofce of the

Public Advocate if this happens.

If your attorney or guardian considers that your doctor is not acting in your best interests,

they could ask for a second opinion from another physician or a specialist. This could

resolve the matter. If the disagreement is about care in a residential aged care facility,

they can talk to your doctor rst to review your care plan.




How to make a power of attorney or guardianship

A power of attorney or guardianship is easy to make. It does not have to be prepared

by a lawyer but if your nancial or legal affairs are complex you should get legal advice.

The forms you need to ll in to make a power are at the back of this kit. Extra forms

can also be downloaded from the Ofce of the Public Advocate website at


You will need witnesses for some of the powers. There are restrictions on relatives,

the attorney or guardian, or alternate decision-makers being witnesses, so check the

instructions with each of the forms. People who witness you signing the form must believe

that you have the capacity to make the power of attorney or guardianship. If there is any

question about your capacity get an independent medical assessment.

If you are unsure about what to do or have any questions you can contact the Ofce

of the Public Advocate for advice and further information.


Who can witness statutory declarations?

If you make an enduring power of attorney, it will need to be witnessed by a person who

can witness a statutory declaration.

The following is a list of people authorised to witness a statutory declaration under section

107A of the Evidence (Miscellaneous Provisions) Act 1958:

• a justice of the peace or a bail justice

• a notary public

• an Australian lawyer

• a clerk to an Australian lawyer• the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a

deputy registrar of the County Court, the principal registrar of the Magistrates’ Court

or a registrar or deputy registrar of the Magistrates’ Court

• the registrar of probates or an assistant registrar of probates

• the associate to a judge of the Supreme Court or the County Court

• the secretary of a master of the Supreme Court or the County Court



H ow t om ak

e a p ow er of at t or n e y or g u ar d i an s h i p

• a person registered as a patent attorney under the Patents Act 1990 of

the Commonwealth

• a member of the police force

• a sheriff or a deputy sheriff

• a member or former member of either House of the Parliament of Victoria

• a member or former member of either House of the Parliament of the Commonwealth

• a councillor of a municipality

• a senior ofcer of a council as dened in the Local Government Act 1989

• a medical practitioner registered under the Health Practitioner Regulation National Law

• a dentist registered under the Health Practitioner Regulation National Law

• a veterinary practitioner

• a pharmacist registered under the Health Practitioner Regulation National Law• a principal in the teaching service

• the manager of an authorised deposit-taking institution (such as a bank)

• a member of the Institute of Chartered Accountants in Australia, the Australian Society

of Accountants or the National Institute of Accountants

• a secretary of a building society

• a minister of religion authorised to celebrate marriages

• a fellow of the Institute of Legal Executives (Victoria)

• a person employed under Part 3 of the Public Administration Act 2004 with a

classication that is prescribed as a classication to which this section applies or who

holds ofce in a statutory authority with such a classication (such as a person who

holds ofce in the Victorian Public Service or a statutory authority).

Try not to be offended when witnesses seek to do their role responsibly and ask you

questions about the meaning of the document and your understanding of it.




32

Do I need to make certied copies?

You can use a photocopy of the original power of attorney or guardianship so people know

what you want but it has no legal power. If you need a copy of your power of attorney or

guardianship to have the same power as the original forms, it needs to be certied to be

valid. Your attorney, guardian or agent should get a certied copy. Do not leave certied

copies with organisations where someone could use them pretending to be your attorney

or guardian.

Who can make a certied copy?

If you want to make a certied copy of a general power of attorney, you can certify it

yourself. All you need to do is add at the bottom of each page ‘This is a true and complete

copy of the corresponding page of the original’ and sign and date it. On the last page you

must write ‘This is a true and complete copy of the original’ and sign and date it.

For the enduring power of attorney (nancial), a copy should be certied in the same way

by a justice of the peace, a legal practitioner, a public notary, a nancial services licensee

under the Corporations Act 2001 or a regulated principal under the Corporations Act.

For all enduring powers of attorney, any of the following people who are authorised to

administer an oath (an oath is not a statutory declaration) can certify a copy:

• any judge or the associate to any judge

• a master of the Supreme Court or of the County Court or the secretary of such a master

• a justice of the peace or a bail justice

• the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a

deputy registrar of the County Court, the principal registrar of the Magistrates’ Court

or a registrar or deputy registrar of the Magistrates’ Court

• the registrar of probates or an assistant registrar of probates

• a senior member or ordinary member of VCAT who, immediately before the

commencement of section 8.2.1 of the Legal Profession Act, was the registrar or a

deputy registrar of the Legal Profession Tribunal

• a member or former member of either House of the Parliament of Victoria

• a member or former member of either House of the Parliament of the Commonwealth• a public notary

• a legal practitioner

• a member of the police force of or above the rank of sergeant or for the time being in

charge of a police station



H ow t om ak

e a p ow er of at t or n e y or g u ar d i an s h i p

• a person employed under Part 3 of the Public Administration Act with a

classication that is prescribed as a classication to which this section applies

• a senior ofcer of a Council as dened in the Local Government Act

• a person registered as a patent attorney under Chapter 20 of the Patents Act of

the Commonwealth

• a fellow of the Institute of Legal Executives (Victoria)

• any ofcer or person empowered authorised or permitted by or under any Act of

Parliament to take afdavits in relation to the matter in question or in the particular part

of Victoria in which the afdavit is sworn and taken.

Should I see a lawyer?

It is your choice. If you feel condent that you understand the forms and your affairs are

straightforward you may not need to see a lawyer. However, you may choose to get legal

advice if you:

• are struggling to ll out the forms

• have a complicated family situation

• have complex nancial arrangements

• think someone may challenge your appointments and you need help getting evidence

to support your capacity.




Summary of powers of attorney and guardianship

General power o

attorney

Enduring power o

attorney (fnancial)

Enduring power o

attorney (medical

treatment)

Enduring power o

guardianship

What decisions can the

person appointed make?

Financial and some legal Financial and some legal Medical Liestyle

When does it begin? As soon as you make the

appointment or when youspeciy it will start

You can choose whether it

will start immediately, ona particular date, on the

happening o an occasion

or when you lose capacity

As soon as you lose

legal capacity to makedecisions about your

medical treatment

As soon as you lose

legal capacity to makedecisions about

liestyle matters

How long does it last? Until you cancel it, you

lose legal capacity,

your attorney becomes

bankrupt or resigns, or

you die

Until you or the

Guardianship List change

or cancel it, your attorney

becomes bankrupt or

resigns, or you die

Until you cancel it, the

Guardianship List rules

that the attorney is

not acting in your best

interests or you die

Until you cancel it, the

Guardianship List rules

that the attorney is

not acting in your best

interests or you die

What limits can I put

on the decision-making

powers?

You can speciy how long

the appointment will last

or place limits on the type

o decisions the attorney

can make. I you do not

speciy any limits, the

attorney will be able to

make any fnancial or

legal decisions on your

behal, until appointment

is cancelled

You can speciy

conditions, limitations

and instructions to

your attorney

None You can limit the powers

o the guardian to any

area o decision-making.

I you do not set any

limits, then the guardian

will have the same

decision-making power

as a parent would have

over a child

Who can cancel it? You You can while you

have legal capacity or

the Guardianship List

can ater you lose

legal capacity

You while you have

legal capacity or the

Guardianship List

can ater you lose

legal capacity

You while you have

legal capacity or the

Guardianship List

can ater you lose

legal capacity

Can I appoint joint

decision-makers?

Yes Yes No No

Can I appoint an

alternate decision-

maker?

No Yes – called

an ‘alternative’

Yes – called

an ‘alternate’

Yes – called

an ‘alternative’

Witnesses required None – unless executed

by direction, when two

witnesses are required

Two witnesses, one

authorised or the

statutory declaration.*

Only one can be a relative.

The attorney must not be

a witness

Two witnesses, one

authorised or the

statutory declaration.*

Witness cannot be agent

or alternate agent

Two witnesses, one

authorised or the

statutory declaration.* A

relative o either the donor

or the attorney cannot be

a witness

* See ‘Who can witness statutory declarations?’.



Where to get help

Wh er et o

g et h el p

If you need an interpreter:

Call the Translating and Interpreting Service for an interpreter to help you speak

to any of the agencies in this section. Ask the interpreter to put you through to

the agency you need. This is usually free.

Tel: 131 450

If you are deaf or have a hearing or speech impairment:

Use the National Relay Service to phone any of the agencies (including Victoria

Legal Aid) in this section. This is free. For more information about the NRS visit

www.relayservice.com.au

TTY users: Call 133 677 and then ask for the phone number you need. Include

the area code.

Speak and Listen users: Call 1300 555 727 and then ask for the phone number

you need. Include the area code.

Internet relay users: Connect to www.iprelay.com.au/call/index.aspx and then

ask for the phone number you need. Include the area code.

Victoria Legal Aid

Legal Information Service

Tel: 9269 0120 or 1800 677 402 (country callers)

Arabic: 9269 0127 Persian (Farsi): 9269 0123

Croatian: 9269 0164 Polish: 9269 0228

Greek: 9269 0167 Serbian: 9269 0332

Italian: 9269 0202 Ukrainian: 9269 0390

Monday to Friday between 8.45 am and 5.15 pm

You can also get an interpreter from the Translating and Interpreting Service if you speak

another language. Call 131 450 and ask to be put through to Victoria Legal Aid.

Local ofces

We have ofces all over Victoria. See the back cover for ofce locations and phone numbers.

Website

www.legalaid.vic.gov.au

http://www.legalaid.vic.gov.au/

http://www.legalaid.vic.gov.au/




36


5th oor, 436 Lonsdale StMelbourne 3000

Tel: 1300 309 337 for the cost of a local call

Fax: 1300 787 510

TTY: 9603 9529


Guardianship List of the Victorian Civil and Administrative Tribunal

7th oor, 55 King St

Melbourne 3000

Tel: 9628 9911Free call: 1800 133 055 (country callers only)

www.vcat.vic.gov.au

Federation of Community Legal Centres

Call to nd out your nearest community legal centre (or specialist centre for intellectually

disabled or mentally ill people).

Tel: 9652 1500

www.communitylaw.org.au

State Trustees

168 Exhibition St

Melbourne 3000

Tel: 9667 6466



F or m s an d i n s t r u ct i on s

Forms and instructions

A checklist for making powers of attorney and guardianship

Choose the power(s) you want.

Choose the people you want to appoint.

Ask the people you want to appoint whether they are happy to be your attorney or

guardian. Make sure they understand what this involves and what they have to do so

they know what they are agreeing to.

Tear out the forms you want to complete from the kit. Make any copies of the form by

photocopying or downloading additional forms from the Ofce of the Public Advocate’s

website at www.publicadvocate.vic.gov.au

Complete the form according to the instructions but do not sign them until you have

checked witnessing requirements and arranged for witnessing of the signatures.

Arrange for the signing and witnessing of the forms. Make sure the witnesses have read

the instructions set out in each document.

Photocopy and certify copies.

If you have appointed an enduring power of attorney (nancial) it is a good idea to give

a copy of the form to your nancial institutions/representatives for their records.

If you have appointed an enduring power of attorney (medical treatment) or an enduring

guardian, it is a good idea to give a copy to your doctor for their records.

Keep the original in a safe place. Every household should have a box or folder where

important documents, such as powers of attorney and Wills are kept. Family or close

friends need to know where these are kept. You could also carry a card in your purse

or wallet that has the details of your powers of attorney.

Give a certied copy to your attorney, agent or guardian. You should also give a copy

to anyone else who may need to be involved, such as your doctor, solicitor, accountant

or stockbroker. You do not have to give a certied copy.




38

For free or low cost help with these forms contact the Ofce of the Public Advocate,

Victoria Legal Aid or Federation of Community Legal Centres. The Federation can direct

you to a community legal service. State Trustees also provide a discounted service for

the public.


These forms can be used by non-English speakers if a qualied interpreter/translator

reads it to the person in the person’s own language and a statement signed by the

interpreter/translator is attached.

More questions you might have

Do I have to register the power of attorney anywhere?No.

How private are these forms?

You decide who gets copies of these forms. They do not need to be produced until your

guardian or attorney needs to act on them.

When are these forms used?

The forms need to be shown to prove the attorney’s or guardian’s powers. The person

who needs proof will probably want to see the original or certied copy and take a copy.

Before hospitals accept the power of an agent, they are entitled to see an original or

certied copy of the power of attorney. Aged care facilities should make sure they have

copies of the documents when a person enters residential care.

How do the people that matter, such as doctors and hospital emergency staff, know

you have lled out these forms if I am too sick to tell them?

You should tell your treating doctors about the powers you have in place. Some people

like to have the enduring power of attorney (medical treatment) sighted and copied when

they enter hospital for serious surgery, in case it is needed.

In emergency situations, staff do not usually have time to sort out documents until a

patient is stable. However, if you have decided that you do not want to be resuscitated,

this will be respected if there is evidence that this is what you want. Evidence includes aRefusal of Treatment Certicate available on the Ofce of the Public Advocate website at


If I change my address or my name, do I have to change the documents?

No.

Are these documents valid in other states or countries?

The laws in each state differ. Many Australian states and territories do accept each other’s

powers of attorney, but not all. The nancial powers are more likely to be accepted,

but most states do not have an enduring power of attorney (medical treatment), so the

Victorian form would not be recognised.Other countries may give some recognition to your powers, if they are able to do so under

their laws. Your attorney or guardian might tell them what care or treatment you want,

but it is unlikely that the country will accept your attorney’s or guardian’s authority as

legally binding.




General power of attorney : Instructions

Instructions

Please read ‘What is a general power of attorney?’ before lling in the form that follows.

To make a general power of attorney you need to ll in and sign the form on the following

page. You can include:

• when you want your attorney’s powers to begin

• what nancial or legal decisions you want them to be able to make

• any limits on their powers.

If you want to limit the powers of your attorney, cross this out ‘I authorise my attorney(s) to

do on my behalf anything that I may lawfully authorise an attorney to do’ in section 2 and

add in the conditions you want. For example, ‘I authorise my attorney to withdraw money

from my bank account between 1/7/10 and 1/12/10’.

This form does not have to be witnessed unless you are unable to sign the form. In this

case, you can direct another person to ll in and sign the form for you. The other person

must sign on your behalf in front of you and two witnesses, who must also sign the form.

See ‘What do these words mean?’ for explanation of jointly and severally or any other

words that you do not understand on this form.



General power of attorney : Form


This general power of attorney is made on the

Print date here day of , 20 ,

Print your ull name here by

Print your address here of

in pursuance of Section 107(1) of the Instruments Act 1958.

Cross out the following option if you wish to appoint more than one attorney.

Print the ull name o your 1. I appoint attorney here

Print your attorney’s ofaddress here

to be my attorney

OR

Cross out the following option if you wish to appoint one attorney.

Print the ull name o your frst I appointattorney here

Print your frst attorney’s ofaddress here

Print the ull name o your andsecond attorney here

Print your second attorney’s ofaddress here

Tick one o the ollowing jointly to be my attorneys jointly and severally to be my attorneysoptions

I you want to limit the powers 2. I authorise my attorney(s) to do on my behalf any thing that I may lawfullyo your attorney, cross this out and add the conditions authorise an attorney to do.

you want.

Sign your name here Signed, sealed and delivered by



Enduring power of attorney (financial) : Instructions


Instructions

Please read ‘What is an enduring power of attorney (nancial)?’ before lling in the form

that follows.

Use this form only if you wish your attorney(s) to act for you, or continue to act for you, when

you have lost the capacity to make decisions for yourself. If you do not wish your attorney to

act for you if you have lost this capacity, use the general power of attorney form.

As the person making the enduring power of attorney you are called ‘the donor’. To make an

enduring power of attorney (nancial) for nancial and legal matters you need to complete

the following three forms.Enduring power of attorney

You, as the donor, need to ll in the ‘Enduring power of attorney nancial’ form. If you have

a physical disability that prevents you from lling in and signing the form you may instruct

another person to do this for you. When this person signs the form, they must do so at your

direction in your presence and before two witnesses. This person must be 18 years old or

more and must not be a witness or your attorney. They must complete the statement at the

end of the second page.

If you want this power to begin only once you have lost capacity, write in section 4 next to

‘on this occasion’: ‘When I become unable to make reasonable judgements relating to all or

any part of my estate’.Certicate of witnesses

The two witnesses must sign the ‘Certicate of witnesses’. You cannot be a witness and

neither can your attorney. At least one of the witnesses must be someone who is not related

to you or the person(s) you appoint as your attorney(s). One of the witnesses must be

authorised by law to witness the signing of statutory declarations.

See ‘Who can sign statutory declarations?’.

The witnesses must sign this form together and in front of you. They must choose one of the

statements under part (a) that applies to your situation and cross out the option which does

not apply.

This means:

• if you signed the form yourself, they select the rst option and cross out the second (a)

• if someone else signed the form for you, they select the second option and cross out the

rst (a).

If a witness is not sure that you understand the nature and effect of the document, they

should refuse to sign the document.

Statement of acceptance

Your attorney must sign and date the ‘Statement of acceptance’. This can be done at a later

date. Make sure your attorney reads the ‘Information for attorneys’ before they sign the form.

Do not use any forms that were published before 1 April 2004. They will not be valid ifyou are making a new power of attorney.

See ‘What do these words mean?’ for an explanation of jointly, severally, alternate attorney

or any other words that you do not understand on these forms.




Information for witnesses As a witness, your responsibility goes beyond making sure that the signature of the

person making the power is genuine. You also need to certify that this person, called the

donor, has:

• signed the form freely and voluntarily in your presence without any undue inuence

or pressure

• has the capacity to make the power of attorney.




This means that at the time of making the appointment the donor must be able to

understand matters such as:

• what sorts of powers the attorney will have

• what sorts of decisions they will have the authority to make

• when and how they will have the authority to exercise that power

• the effects that their power could have on the donor

• how to cancel the arrangement in the future.

In examining the capacity of the donor you should respect their privacy. You do not

need to know the specic details of the estate, such as the balance of the donor’s bank

accounts or exactly how many properties the donor may own. Rather you should makesure that the donor understands that they are giving the attorney the same power that the

donor has to deal with any of the donor’s assets.

You may have to give information in the future about the donor’s capacity at the time the

powers were made. If you have any doubts about the donor’s capacity you can make

appropriate inquiries with the donor’s consent. For example, you could contact the donor’s

doctor. You could also ask for a medical certicate conrming the donor’s capacity and

attach it to the forms.

If you have any doubts it is strongly recommended that you make a written record of your

concerns and any questions you asked to work out the donor’s capacity. If you think that

the donor does not understand the nature and effect of the document, you should refuse tosign the form. You should also refuse to sign the form if the donor appears to be signing it

under duress, undue inuence or pressure from another person.

Where an interpreter is required it is important that you are satised that the form has

been explained in a language that the donor understands.



Information for attorneys

Important notice

The donor, in choosing you to be their enduring power of attorney, is entrusting you

to act in their best interests. If you accept this trust and the enduring power of attorney

you will be taking on serious responsibilities. If you fail to observe these responsibilities

you could be removed as attorney or even convicted of an offence and required to

pay compensation.

Besides the particular responsibilities mentioned in this document, there are

responsibilities imposed by the Instruments Act 1958 and under the common law.

What are these responsibilities?They are both general and specic.

General responsibilities guide you in decision-making:

• You must exercise the power given to you honestly and with reasonable care. It is an

offence not to do so, and you may also be required to compensate the donor.

• You must comply with the terms of the enduring power of attorney and any other

requirement of the Supreme Court or VCAT. In addition you must abide by the general

principles on which the Act is based.

General principles include:

• presuming that the donor has the capacity to make a particular decision until there

is conclusive evidence that this is not the case• recognising their right to participate in decisions affecting their life to the maximum

extent for which they have capacity

• respecting the donor’s human worth and dignity and equal claim to basic human rights,

regardless of their capacity

• recognising the donor’s role as a valued member of society and encouraging their

self-reliance and participation in community life

• taking into account the importance of the donor’s existing supportive relationships,

values and cultural and linguistic environment

• ensuring that your decisions are appropriate to the donor’s characteristics and needs

• recognising the donor’s right to condentiality of information.




Specic responsibilities include:

• Duty to keep records. You must keep accurate records of dealings and transactions

made under the power as VCAT or the Supreme Court or the Public Advocate may

require you to produce them. You must keep these records separate from your own

affairs where possible. For example, if you dispose of an asset you should keep records

about the disposal. Where there are joint attorneys, then it is sufcient that by agreement

one of the attorneys will retain a record or account of transactions or dealings.

• Duty to keep property separate. You must keep your property separate from the

donor’s property unless you and the donor own the property jointly. If the donor’s

capacity to make decisions is impaired, you must also get approval from VCAT or the

Supreme Court for any transactions that have not been authorised in this document.• Duty to avoid transactions that involve conict of interest. You must not enter into

transactions that could or do bring your interests (or those of your relation, business

associate or close friend) into conict with those of the donor. However, you may enter

into such a transaction if it has been authorised in this document or by VCAT or the

Supreme Court.

How do I complete a document for the donor?

If you have the power to execute (complete) a document for the donor, you do so in the

ordinary way but you must note on the document that you are executing it as the donor’s

attorney under an enduring power of attorney (for example, ‘John Smith, by his duly

appointed attorney, Mary Jones’).

Proof of your authority

It is recommended that you keep the Enduring Power of Attorney document in a safe

place. Sighting of the document may be a requirement of your authority by nancial

institutions, banks etc.

When does my power to make decisions begin?

The donor may nominate in this document when your power to make nancial decisions

begins. If the donor does not nominate a date or event or occasion when a power

becomes exercisable, then your power begins immediately. However, while the donor

retains capacity, you must act in accordance with the donor’s directions.




When does my power end?Though there is no time limit on enduring powers of attorney, certain actions by you or the

donor or VCAT or the Supreme Court can bring your power to an end.

Your actions could include:

• Your resignation. So long as the donor is capable of using the power given to you, you

can resign by giving the donor a signed notice. However, if the donor is incapable of using

the power, then you may only resign by getting leave of VCAT or the Supreme Court.

• Becoming incapable. Your power is revoked if you become incapable of understanding

the nature and foreseeing the effects of a decision, and communicating that decision.

• Becoming bankrupt or insolvent. If this happens, your power is revoked.

• Your death.

The donor’s actions could include:

• Revoking your power. The donor may revoke your power at any time so long as

they have the capacity to revoke it. That is, the donor understands the nature and

effect of revoking the power. If the donor revokes your power, the donor has an

obligation to inform you. If the donor neglects to advise you that the power is revoked

and you continue to exercise the power in good faith, then you will be protected under

the legislation.

• Appointing a new attorney exclusively to have your powers. If the donor completes

a new document giving your powers to another attorney exclusively, your powers arerevoked to that extent. Because the new document has a later date and is inconsistent

with your powers it overrides the earlier document.

• The donor’s death. If the donor dies your enduring power of attorney is revoked in

its entirety.

Actions by the Supreme Court or VCAT could include:

• Your power may also be changed or revoked by the Supreme Court or VCAT if you have

failed to act in the donor’s interests.




Can I be held liable?

Yes, you can be held liable if you use the enduring power of attorney knowing that it has

been changed or revoked, or knowing of an event that effectively revokes it, or even if you

have reason to believe that it has been revoked.

The Supreme Court, VCAT and the Ofce of the Public Advocate have the power to

protect the donor’s interests. You may be required to produce a summary of receipts

and expenditure or more detailed accounts, and these may be audited. You may also be

required to give evidence in relation to the exercise of your powers. If VCAT, the Supreme

Court or the Public Advocate believes that you have not adequately protected the donor’s

interests, you may be removed or your enduring power of attorney may be revoked, andyou may be required to compensate the donor.

Where can I go for advice?

The Ofce of the Public Advocate, a community legal centre, a solicitor, VCAT, the

Supreme Court, State Trustees or a trustee company can advise you about this document

and your power and responsibilities under it. VCAT and the Supreme Court can also make

a declaration about the validity of this document or whether your power to make a decision

for the donor has begun.





Enduring power of attorney (financial) : Form

This enduring power of attorney is made under Part XIA of the Instruments

Act 1958 and has effect as a deed.

Print date here This enduring power of attorney is made on

Cross out the following option if you wish to appoint more than one attorney.

Print your ull name here 1. I,


Print the ull name o your appoint attorney here

Print your attorney’s ofaddress here

to be my attorney

OR

Cross out the following option if you wish to appoint one attorney.



Print the ull name o your frst appoint attorney here


Print the ull name o your and second attorney here


Cross out the following next two lines if wish to appoint only two attorneys

Print the ull name o your and third attorney here

Print your third attorney’s ofaddress here

Tick one o the jointly to be my attorneys jointly and severally to be my attorneysollowing options

Cross out the following option if you do not wish to appoint an alternative attorney

Print your ull name here 1a. I,


Print the ull name o your appoint alternative attorney here

Print the address o your ofalternative attorney here

Print the name o the as an alternative attorney fororiginal attorney(s) you are

appointing here





2. I authorise my attorney(s) to do on my behalf anything that I may lawfully

authorise an attorney to do.

Cross out the following option if it does not apply

3. The authority of my attorney(s) is subject to the following conditions,

limitations, and instructions:

4. I declare that this power of attorney begins:

Tick one box only

immediately.

Print the date you want the

power o your attorney(s) to on this date:begin here

Print the occasion you want on this occasion:the power o your attorney(s)

to begin here If you do not complete this clause, the power begins immediately.

5. I declare that this power of attorney will continue to operate and have full force

and effect even if I subsequently become legally incapable.


6. I declare that all previous enduring powers of attorney (nancial) signed by me

are hereby revoked.Sign your name here Signed as a deed by

or


Person signing or the donor prints his/her ull name here I,

state that: a) I am at least 18 years old

b) I am not a witness for this document or an attorney for the donor.

Person signing at the direction

and in the presence o the donor o the power signs here

Note: If this enduring power of attorney confers power on two or more attorneys to act jointly, then they

have equal authority and can only act with the agreement of them all, and any documents must be

signed by all of the attorneys together. If this enduring power of attorney confers power on two or more

attorneys to act jointly and severally, then in exercising the powers under the enduring power of attorney

any of the attorneys can act and sign documents together or alone.



Certicate of witnesses


Print the ull name o the witness authorised to witness

the signing o statutory We,declarations here

Print the address o your frst ofwitness here

Print the ull name o your and second witness here

Print the address o your of

second witness here

certify:

Cross out whichever option a) does not apply

a) that the donor has signed this enduring power of attorney (nancial)

freely and voluntarily in our presence;

or

a) that this enduring power of attorney (nancial) has been signed in our

presence at the direction and in the presence of the donor of the power,

and the donor of the power gave that direction freely and voluntarily;

AND

b) that at the time of signing, the donor appeared to each of us to have the

capacity necessary to make the enduring power of attorney.

Witness authorised to witness the signing o statutory declarations signs here

Other witness signs here



Statement of acceptance for attorneys


Print the ull name o I,proposed attorney here

Print address o proposed ofattorney here

Print date here on

accept appointment as an attorney under

Tick one box only

this enduring power of attorney

the attached enduring power of attorney

and undertake -

a) to exercise the powers conferred with reasonable diligence to protect the

interests of the donor; and

b) to avoid acting where there is any conict of interest between the interests

of the donor and my interests; and

c) to exercise the powers conferred in accordance with Part XIA of the

Instruments Act 1958.

Signature o the attorney goes here


Print the ull name o proposed attorney here I,

Print address o proposed attorney here of

Print date here on


Tick one box only



and undertake -





c) to exercise the powers conferred in accordance with Part XIA of theInstruments Act 1958.




Statement of acceptance for attorneys


Print the ull name o I,proposed attorney here

Print address o proposed ofattorney here

Print date here on


Tick one box only



and undertake -











Statement of acceptance for alternative attorneys


Print the ull name o proposed I,

alternative attorney here

Print address o proposed alternative attorney here of

Print date here on

accept appointment as an alternative attorney under

Tick one box only



and undertake -







Signature o the alternative attorney goes here




Instructions

Please read ‘What is an enduring power of attorney (medical treatment)?’ before lling

in the form that follows.

To make an enduring power of attorney (medical treatment) you need to ll in and sign the

form on the following page. The form uses the term agent which is another name for an

attorney. An agent’s authority to refuse treatment is outlined in section 5A of the Medical

Treatment Act.

You will need two witnesses to sign the ‘Certicate of witnesses’ in front of you. You and

your agent cannot be witnesses. One of the witnesses must be authorised by law to

witness the signing of statutory declarations.


Your agent’s power begins when you lose capacity and cannot make decisions. Their

decisions have the same legal force as if you had made them yourself.

See ‘What do these words mean?’ for an explanation of agent, alternate agent or any

other words that you do not understand on these forms.

Information for witnesses As a witness, your responsibility goes beyond making sure that the signature of the person

making the power is genuine. You also need to state that you believe that the person,

called the donor, is of sound mind and understands this form.

The donor should be able to tell you things like:

• what sorts of powers the agent will have

• what sorts of decisions the agent will have the authority to make

• when and how the agent will have the authority to exercise that power

• the effects that the agent’s power could have on the donor

• how the donor may cancel or change the arrangement in the future.


concerns and any questions you asked to work out the donor’s capacity. You can also

make appropriate inquiries with the donor’s consent. For example, you could contact the

donor’s doctor or ask for a medical certicate conrming the donor’s capacity.

If you think that the donor does not understand the nature and effect of the document, you

should refuse to witness the form. You should also refuse to witness the form if the donor

appears to be signing it under duress, undue inuence or pressure from another person.

Enduring power of attorney (medical treatment) : Instructions




This enduring power of attorney is given on the

Print date here day of , 20 ,

Print your ull name here by


under Section 5A of the Medical Treatment Act 1988.

Cross out the following option if you also wish to appoint an alternate agent.

Print the ull name o your agent here 1. I appoint

Print your agent’s ofaddress here

to be my agent.

Or

Cross out the following option if you do not wish to appoint an alternate agent.

Print the ull name o your agent here 1. I appoint

Print your agent’s ofaddress here

to be my agent

Print the ull name o your alternate agent here and

Print your alternate agent’s ofaddress here

to be my alternate agent.

2. I authorise my agent or, if applicable, my alternate agent, to make decisions

about medical treatment on my behalf.

3. I revoke all other enduring powers of attorney (medical treatment) previously

given by me.

Sign your name here Signed, sealed and delivered by:

Print your witnesses’ Wenames here

Print your name here each believe that

in making this enduring power of attorney (medical treatment) is of sound

mind and understands the import of this document. Witnessed by:

Witnesses sign here

Person authorised to witness statutory declarations Other witness

Name o witnesses

Addresses o witnesses

Enduring power of attorney (medical treatment) : Form




Instructions

Please read ‘What is an enduring power of guardianship?’ before lling in the form

that follows.

As the person making the enduring power of guardianship, you are called the ‘appointor'.

To make an enduring power of guardianship you need to complete the following forms.


You need to ll in the ‘Enduring power of guardianship’ form on the following pages.

A guardian has the power to make decisions on your behalf as set out in the form.

If you do not cross out any powers in section 2, you will be authorising your guardian to

have all the powers that a parent has over their child. If you have not made an enduring

power of attorney (medical treatment), this will also include the power to consent to

medical treatment on your behalf.

Two witnesses must sign this form together and in front of you. You, your guardian or your

alternative guardian cannot be witnesses. You also cannot have anyone who is related to

you, your guardian or your alternative guardian. One of the witnesses must be authorised

by law to witness the signing of statutory declarations.

See ‘Who can sign statutory declarations’.

Acceptance of appointment by guardian (or alternative guardian if applicable)

Your guardian (and alternative guardian, if applicable) must sign and date the ‘Acceptanceof appointment by guardian’.

Again two witnesses must sign this form. One of the witnesses must be authorised by law

to witness the signing of statutory declarations.

See above for details about who cannot be a witness.

Make sure your guardian understands their responsibilities and your instructions and

wishes before they sign this form.

See ‘What do these words mean?’ for an explanation of guardian, alternate guardian

or any other words that you do not understand on these forms.

Enduring power of guardianship : Instructions



Information for witnesses

As a witness, your responsibility goes beyond making sure that the signature of the

person making the power is genuine. You also need to certify that this person, called the

appointor has:

• signed the document freely and voluntarily in your presence

• appeared to understand the effect of this document.

The appointor should be able to tell you things like:

• what sorts of powers the guardian will have

• what sorts of decisions the guardian will have the authority to make

• when and how the guardian will have the authority to exercise that power

• the effects that the guardian’s power could have on the donor

• how the appointor could cancel or change the arrangement in the future.

If you have any doubts it is strongly recommended that you make a written record of

your concerns and any questions you asked to work out the appointor’s capacity. You can

also make appropriate inquiries with their consent. For example, you could contact the

appointor’s doctor or ask for a medical certicate conrming their capacity.

If you think the appointor does not understand the nature and effect of the document,

you should refuse to sign the form. You should also refuse to sign the form if the appointor

appears to be signing it under duress, undue inuence or pressure from another person.

Enduring power of guardianship : Instructions



Appointment of enduring guardian

Form of appointment

Print name here 1. I,


Print your occupation here

Print the ull name o your appoint guardian here

Print your guardian’s ofaddress here

Print your guardian’s occupation here

to be my guardian.

2. I authorise my guardian if, and only to the extent that, I subsequently become

unable by reason of a disability to make reasonable judgements in respect of

any matters relating to my person or circumstances, to exercise the powers of

a guardian under section 24 of the Guardianship and Administration Act 1986,

being all the powers that a parent may exercise in respect of his or her child,

including -

• to decide where I am to live, whether permanently or temporarily;

• to decide with whom I am to live;

• to decide whether I should or should not be permitted to work and, if so -

- the nature or type of work; and

- for whom I am to work; and

- matters related thereto; and

• to consent to any health care that is in my best interests;

• to restrict visitors to such extent as may be necessary in my best interests

and to prohibit visits by any person if my guardian reasonably believes that

visits by that person would have an adverse effect on me.

(Delete any powers you do not wish your guardian to exercise. If you do not delete any powers,

you will be deemed to have authorised your guardian to exercise the full powers of a guardian

under section 24 of the Guardianship and Administration Act 1986.)

List limitations you wish to but subject to the following limitations:place on your guardian’s

powers here

Enduring power of guardianship : Form




List any wishes that you 3. I require my guardian to take into account the following wishes in exercising,want your guardian to take

or in relation to the exercise of, the powers conferred by this appointment:into account when making

decisions on your behal

I applicable print the ull name o your alternative 4. I appoint

guardian here

Print your alternative ofguardian’s address here

Print your alternative guardian’s occupation here

to be my alternative guardian in place of, and with the same powers as, my

guardian appointed under paragraph 1 if that person is incapable of acting as

my guardian or is absent for a period.

This is an appointment of an enduring guardian made under Division 5A ofPart 4 of the Guardianship and Administration Act 1986.

Sign your name and insert Signature of appointor Datedate here

Certicate of witnessesPrint the ull name o the person who is authorised to witness the signing o We,

statutory declarations here

Print the address o this frst ofwitness here

Print the occupation o your frst witness here


Print the address o your ofsecond witness here

Print the occupation o your second witness here

certify -

a) that the appointor has signed this instrument freely and voluntarily in our

presence; and

b) that the appointor appeared to understand the effect of this instrument.

First witness signs and dates Signature Date

Second witness signs Signature Dateand dates



Note: An enduring guardian will be able to make decisions on your behalf on all health care and lifestyle matters you empower

your enduring guardian to make. If you give your enduring guardian power to make decisions about your health care, your

enduring guardian will be able to consent or withhold consent to medical or dental treatment on your behalf.

If your enduring guardian withholds consent to proposed medical or dental treatment, a practitioner may only provide the

treatment if the practitioner believes on reasonable grounds that it is in your best interests to do so and if the practitioner givesyour enduring guardian the opportunity to refer the matter to the Victorian Civil and Administrative Tribunal (the Tribunal) for

determination.

If you wish to appoint a person who can, unless the Tribunal otherwise determines, refuse medical treatment on your behalf,

you will need to appoint a person as your agent under the Medical Treatment Act 1988.

If you are considering appointing an agent under the Medical Treatment Act 1988 -

• you should ensure that you understand the rights and powers which an appointment under the Medical Treatment Act 1988

confers on your agent; and

• you may wish to appoint the same person as your agent under the Medical Treatment Act 1988 as the person you appoint

as your enduring guardian, although you may choose a different person for each role; and

If you appoint or have already appointed a person as your agent under the Medical Treatment Act 1988 and another person as

your enduring guardian -

• the decision of your agent under the Medical Treatment Act 1988 will have priority over the decision of your enduring

guardian in relation to any proposed medical treatment; and

• your agent under the Medical Treatment Act 1988 will be able to refuse to consent to medical treatment on your behalf in allcircumstances regardless of any consent to the treatment that your enduring guardian may give or wish to give.

Acceptance of appointment by guardian

Print your guardian’s ull I,name here

Print your guardian’s ofaddress here

Print your guardian’s occupation here

accept appointment as a guardian under this instrument and undertake to

exercise the powers conferred honestly and in accordance with the provisions

of the Guardianship and Administration Act 1986.

Your guardian signs and dates Signature Date








certify -

a) that the proposed guardian has signed this instrument freely and voluntarily in

our presence; and

b) that the proposed guardian appeared to understand the effect of this instrument.


Second witness signs Signature Dateand dates




Acceptance of the appointment by alternative guardian

Print your alternative I,guardian’s ull name here

Print your alternative ofguardian’s address here

Print your alternative guardian’s occupation here

accept appointment as an alternative guardian under this instrument and

undertake to exercise the powers conferred honestly and in accordance withthe provisions of the Guardianship and Administration Act 1986.

Your alternative guardian Signature Datesigns and dates








certify -

a) that the proposed alternative guardian has signed this instrument freely and

voluntarily in our presence; and

b) that the proposed alternative guardian appeared to understand the effect of

this instrument.


Second witness signs and dates Signature Date




Revocation of general power of attorney

Instructions

Please read ‘How to change or cancel your powers’ before lling in the form

that follows.

You may change or revoke your general power of attorney at any time, so long as you

have capacity.

You can revoke a power by telling your attorney, or attorneys, that their power is

withdrawn and destroying the power of attorney document and any copies.

You can also formally revoke your power by lling out the ‘Revocation of power of

attorney’ form on the following page and giving it, or a certied copy, to your attorney.

You should keep a certied copy for your records and a record of how you told each

attorney of the revocation.

It is very important that you ask your attorney to return the general power of attorney

document to make sure that they do not continue to act as your attorney. It is also a good

idea to tell any people or organisations that your attorney may have been dealing with,

such as your bank.

See ‘What do these words mean?’ for an explanation of revocation, attorney or any other

words that you do not understand on these forms.

Revocation of general power of attorney : Instructions



Revocation of general power of attorney : Form

Revocation of general power of attorney

Print the ull name o your To attorney here

Print your ull name here I

revoke the power of attorney dated the

Print the date o the power o day of 20 that I gave you.attorney document here

Sign your name here Signed by

Print the ull name o your Witnessed by witness here

Witness signs and dates Signature Date



Revocation of enduring power of attorney (nancial)

Instructions

Please read ‘How to change or cancel your powers’ before lling in the form that follows.

You may change or revoke your enduring power of attorney (nancial) at any time so long as

you have capacity.

You can revoke a power by telling your attorney, or attorneys, that their power is withdrawn

and destroying the power of attorney document and any copies.

You can also formally revoke your power by lling out the ‘Revocation of enduring power of

attorney (nancial)’ on the following page and giving it, or a certied copy, to your attorney.

You should keep a certied copy for your records and a record of how you told each attorneyof the revocation.

Two witnesses must sign this form. You or your attorney cannot be witnesses. At least one of

the witnesses must be someone who is not related to you or to the person(s) you appointed

as your attorney(s). One of the witnesses must be authorised by law to witness the signing of

statutory declarations.


It is very important that you ask your attorney to return the enduring power of attorney

form to make sure that they do not continue to act as your attorney. It is also a good idea

to tell any people or organisations that your attorney may have been dealing with, such as

your bank.See ‘What do these words mean?’ for an explanation of revocation, attorney or any other

words that you do not understand on this form.


As a witness, your responsibility goes beyond making sure that the signature of the

person revoking the power is genuine. You also need to certify that this person, called the

donor, has:

• signed the document freely and voluntarily in front of you without any undue inuence

or pressure

• has the capacity to revoke the power of attorney.

Capacity, or legal capacity, means you have the ability to reason things out. You can

understand, retain, believe, evaluate (that is, process) and weigh up relevant information.


concerns and any questions you asked to work out the donor’s capacity. You can also make

appropriate inquiries with the donor’s consent. For example, you could contact the donor’s

doctor or ask for a medical certicate conrming their capacity.

If you think that the donor does not understand the nature and effect of this document you

should refuse to sign the form. You should also refuse to sign the form if the donor appears

to be signing it under duress, undue inuence or pressure from another person.

Revocation of enduring power of attorney (financial) : Instructions



Revocation of enduring power of attorney (financial) : Form

Revocation of enduring power of attorney (nancial)



Print the date o the power o revoke the enduring power of attorney (nancial) dated onattorney document here

Print the ull name o your frst which appointedattorney here


Cross out the following four lines if you appointed only one attorney.

Print the ull name o your and second attorney here


Cross out the following two lines if you appointed only two attorneys.

Print the ull name o your and third attorney here

Print your third attorney’s ofaddress here

as my attorney(s).

2. This revocation of enduring power of attorney is made under Part XIA of the


Sign your name and print the Signature Date

date here

or

Cross out the following option if it does not apply.Person signing at the direction

and in the presence o the donor I, sign at the direction of the donor.prints their ull name here

Person signing or the donor Signature Datesigns and dates here

Print ull name o the person who can witness the signing Witnessed by

o statutory declarations here

Print the address o frst ofwitness here

First witness signs here Signature

Print the ull name o the and second witness here

Print the address o second ofwitness here

Second witness signs here Signature



Revocation of enduring power of attorney

(medical treatment)

Instructions


You may change or revoke your enduring power of attorney (medical treatment) at any

time, so long as you have capacity.

You can revoke a power by telling your agent(s), that their power is withdrawn and

destroying the enduring power of attorney document and any copies.

You can also formally revoke your power by lling out the ‘Revocation of enduring power

of attorney (medical treatment)’ form on the following page and giving it, or a certied

copy, to your agent. You should keep a certied copy for your records and a record of how

you told each agent of the revocation.

It is very important that you ask your agent to return the enduring power of attorney

document to make sure that they do not continue to act as your agent. It is also a good

idea to notify any people ororganisations that your agent may have been dealing with, such

as your doctor or service providers.

See ‘What do these words mean?’ for an explanation of revocation, agent or any other

words that you do not understand on these forms.

Revocation of enduring power of attorney (medical treatment) : Instructions



Revocation of enduring power of attorney (medical treatment) : Form

Revocation of enduring power of attorney (medical treatment)

Print the ull name o your To attorney here

Print your ull name here I

revoke the power of attorney (medical treatment) dated the

Print the date o the power o day of 20 that I gave you.attorney document here

Sign your name here Signed by

Print the ull name o your Witnessed by witness here

Witness signs and dates Signature Date



Revocation of enduring power of guardianship

Instructions


You may change or revoke your enduring power of guardianship at any time, so long as

you have capacity.

You can revoke your power by lling out the ‘Revocation of enduring power of

guardianship’ form on the following page and giving it, or a certied copy, to your guardian

or alternative guardian. You should keep a certied copy for your records and a record of

how you told your guardian or alternative guardian of the revocation.

Two witnesses must sign this form together and in front of you. You, your guardian or your

alternative guardian cannot be witnesses. You also cannot have anyone who is related to

you, your guardian or your alternative guardian as witness. One of the witnesses must be

authorised by law to witness the signing of statutory declarations.


It is very important that you ask your guardian or alternative guardian to return the

enduring power of guardianship form to make sure that they do not continue to act on your

behalf. It is also a good idea to notify any people or organisations that your guardian or

alternative guardian may have been dealing with, such as your doctor or service providers.

See ‘What do these words mean?’ for an explanation of revocation, guardian or

alternative guardian or any other words that you do not understand on these forms.


As a witness your responsibility goes beyond making sure that the signature of the

person revoking the power is genuine. You also need to certify that this person, called the

donor, has:

• signed the document freely and voluntarily in front of you without any undue inuence

or pressure

• has the capacity to revoke the power of attorney.




If you have any doubts it is strongly recommended that you make a written record of

your concerns and any questions you asked to work out the donor’s capacity. You can also

make appropriate inquiries with the donor’s consent. For example, you could contact the

donor’s doctor or ask for a medical certicate conrming their capacity.

If you think that the donor does not understand the nature and effect of this document, you

should refuse to sign the form. You should also refuse to sign the form if the donor appearsto be signing it under duress, undue inuence or pressure from another person.

Revocation of enduring power of guardianship : Instructions



Revocation of enduring power of guardianship : Form

Revocation of appointment of enduring guardian



Print your occupation here

Print the ull name o your guardian or alternative

revoke the appointment ofguardian here

Print your guardian or alternative guardian’s of

address here

Print your guardian or alternative guardian’s

occupation here

Insert guardian or alternative as myguardian as applicable here

Insert enduring guardian or 2. This revocation of appointment as an is madealternative enduring guardian

as applicable here under Division 5A of Part 4 of the Guardianship and Administration Act 1986.

Sign and date here Signature of appointor Date








certify -

a) that the appointor has signed this instrument freely and voluntarily in our

presence; and

b) that the appointor appeared to understand the effect of this instrument.


Second witness signs

Signature Dateand dates






Ofce o the Public Advocate 5th Floor, 436 Lonsdale St

Melbourne VIC 3000

Tel: 1300 309 337 or the cost o a local call

TTY: 9603 9529 or ACE 133 677 (03) 9603 9500


Victoria Legal Aid

Legal Inormation Service Tel: 9269 0120

Country callers: 1800 677 402

Ofces

MELBOURNE350 Queen St

Melbourne VIC 3000

Tel: 9269 0120

Country callers: 1800 677 402

Suburban ofces

BROADMEADOWSNorth western suburbsLevel 1, Building 1

Broadmeadows Station Centre

1100 Pascoe Vale RdBroadmeadows VIC 3047

Tel: 9302 8777

DANDENONGWesternport region

Level 1, 9-15 Pultney StDandenong VIC 3175

Tel: 9767 7111

FRANKSTONPeninsula region

Cnr O’Grady Ave & Dandenong Rd

Frankston VIC 3199

RINGWOODOuter eastern suburbs

23 Ringwood St

Ringwood VIC 3134Tel: 9259 5444

SUNSHINEWestern suburbs

1/474 Ballarat RdSunshine VIC 3020

Tel: 9300 5333

Regional ofces

BALLARATCentral Highlands region

Area A, Level 1

75 Victoria St

Ballarat VIC 3350Tel: 5329 6222

Toll ree: 1800 081 719

BENDIGOLoddon-Campaspe region

424 Hargreaves St

Bendigo VIC 3550

HORSHAMWimmera region

29 Darlot St

Horsham VIC 3400

Tel: 5381 6000Toll ree: 1800 177 638

MORWELLGippsland region

Cnr Chapel & George StMorwell VIC 3840

Tel: 5134 8055

BAIRNSDALEGippsland region (branch ofce)101A Main St

Bairnsdale VIC 3875

Tel: 5153 1975

SHEPPARTONGoulburn region

36-42 High St

Shepparton VIC 3630Tel: 5823 6200

Toll ree: 1800 119 918

Documents

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